DEV GOSWAMI Vs. GULSHAN SHARMA

JUDGEMENT

(1.) ADMITTEDLY , appellant, ever since the date of his marriage with the respondent on September 25, 1993 and till such time the parties to this matrimonial dispute separated was living on the income of his wife. The only male child of the parties, born in 1996 unfortunately expired and the appellant cared to come to the ailing child, who was admitted in the hospital, just at the last moment when he died, as per allegations made by the respondent-wife and held substantiated by the learned Matrimonial Court. The assertions of the respondent-wife that the appellant behaved in most unsocial, uncivilised and savage manner by giving her beating in a public place and further that even on the occasion of marriage of brother of respondent, appellant again misbehaved with her and slapped her in the presence of gathering and further that the appellant even went to the extent of committing theft of valuable ornaments of the respondent-wife and further misbehaved with her even on the road side while she was going to attend her duties, have also been substantiated as per the findings recorded by learned Matrimonial Court.

(2.) THERE is no scope whatsoever for interference in the aforesaid findings recorded by learned Matrimonial Court as it is an admitted position that the appellant is not gainfully employed. Appellant has cheeks to plead and seek to prove that he entered into matrimonial bond with the respondent only on the understanding that he for his life would live on her earnings and yet claim that he has not been cruel to his wife. Again, insofar as non-caring of the appellant with regard to only child is concerned it was admitted by him that as long as the child was admitted in the hospital at Ambala, he did not care to go there and that he reached PGI, Chandigarh on the last moment when the child died. The other instances of cruelty, indulged into by the appellant, have also been held proved on the basis of evidence led by the parties and, as mentioned above, there is not even an argument raised by learned counsel for the appellant that the said findings need interference by this Court.

(3.) THE second and last contention of learned counsel for the appellant is that it is proved on records of the case that earlier in point of time, respondent-wife had filed a petition under Section 13 of the Act which was withdrawn by her and that would result into condonation of cruelty, even if the appellant had indulged into the same. We do not find any substance in this contention of learned counsel either. The earlier petition filed under Section 13 of the Act was withdrawn by the respondent when the appellant promised to mend his ways. He, however, failed to live to his terms and improve his conduct. He continued with his cruel behaviour, thus, rendering the respondent physically drained and a mental wreck. It is otherwise also well settled that withdrawal of earlier petition cannot be regarded as condonation on the part of the spouse to operate as estoppel to file a second petition on the same cause. Condonation of matrimonial transgression involves condition of such transgression as is known to or believed by the offending spouse, as to restore the status quo ante as between the spouse. To constitute condonation there must be two things, forgiveness and restoration. The real import of condonation is conditional waiver of the right of the injured spouse to take out proceedings. The condition is revival of the normal married life. There can not be condonation if the offending spouse continues to indulge in the matrimonial offence. This is what has been held in Smt. Abha Aggarwal v. Sunil Aggarwal, 2001(2) RCR(Civil) 394 (Allahabad) : 2001(1) C.C.C. 266 (Allahabad).